LaFace v. Ralphs Grocery Company

Suitable seating, Private Attorneys General Act

Los Angeles County

Superior Court Judge Patricia D. Nieto

Tritia Murata

Defense attorneys: Morrison & Foerster LLP, Tritia M. Murata, Karen J. Kubin, Wendy J. Ray, James E. Boddy Jr., David P. Zins, Maya Harel, David F. Papas, Allyson D. Bach

Plaintiff attorneys: Law Office of Michael V. Jehdian APC, Michael V. Jehdian; Knapp, Petersen & Clarke PC, André E. Jardini, Greta T. Hutton, Kristen-Leigh Myles

In the first case to go to trial in an employee suitable seating case since the state Supreme Court clarified a contentious wage order, a Morrison & Foerster team won a complete defense victory for client Ralphs Grocery Co. in the face of a nearly $100 million claim for PAGA civil penalties.

Ralphs cashier Jill LaFace filed the PAGA action seeking penalties for the grocer's alleged wrongful failure to furnish seats for its front-of-store cashiers throughout California. LaFace v. Ralphs Grocery Co., BC632679 (L.A. Super. Ct., filed Sept. 1, 2016).

Just months earlier, the high court had held in Kilby v. CVS Pharmacy Inc., S215614, that working employees shall be provided seats when the nature of the work "reasonably" permits it and instructing that the totality of circumstances must be considered.

So the challenge facing lead defense counsel Tritia M. Murata and Karen J. Kubin was to show that the plaintiff's demand for a place to sit down was unreasonable. "The Kilby decision underscores that the touchstone of the analysis is reasonableness, with the employee's need for a seat balanced against the employer's considerations of practicability and feasibility," Murata said.

Karen Kubin

She and Kubin brought on an ergonomics expert who showed workplace video to demonstrate how much dynamic movement Ralphs' front-end cashiers must continuously perform when checking out customer orders. Seating for the cashiers would create a safety hazard for them and for customers, the lawyers argued. "Doing their jobs from a seated position would risk musculoskeletal injury," Murata said.

Following a bench trial over 13 court days, Los Angeles County Superior Court Judge Patricia D. Nieto agreed--despite objections by plaintiff lawyers André E. Jardini of Knapp, Petersen & Clarke PC and Michael V. Jehdian, a sole practitioner.

Jardini said in an email that he has strong issues to present on appeal: "Kilby counsels that the experience of cashiers at other stores is pertinent. This evidence was excluded. Ralphs' exert Dr. [Jeffrey] Fernandez is often hired as an ergonomist in these seating cases for cashiers. He has been involved in at least six previous cases where he opined that seating was either impossible or inappropriate. In each of those cases, the defendant company settled, agreeing to provide such seating. This evidence was excluded. Kilby counsels that possible reasonable modifications to the cashier area are pertinent evidence. This evidence was largely excluded."

-- John Roemer